“Physician Orders for Life-Sustaining Treatment Act”;
provides for use of Physician Orders for Life-Sustaining Treatment forms and
requires physicians and advanced practice nurses to pursue continuing education
in end-of-life care.

CURRENT VERSION OF TEXT

As amended on September 26, 2011 by the Senate
pursuant to the Governor's recommendations.

An Act providing for the use of Physician Orders for
Life-Sustaining Treatment forms and supplementing Titles 26, 30, and 45 of the
Revised Statutes.

Be It Enactedby the Senate and General Assembly of the State of New
Jersey:

1. Sections 1 through 13 of
this act shall be known and may be cited as the “Physician Orders for
Life-Sustaining Treatment Act.”

2. The Legislature finds
and declares that:

a. Pursuant to the “New
Jersey Advance Directives for Health Care Act,” P.L.1991, c.201 (C.26:2H-53 et
seq.), this State has statutorily recognized the right of an adult with
decision-making capacity to plan ahead for health care decisions through the
execution of advance directives and designate a surrogate decision-maker, and
to have the wishes expressed in those documents respected, subject to certain
limitations, in order to ensure that the right to control decisions about one's
own health care is not lost if a patient loses decision-making capacity and is
no longer able to participate actively in making his own health care decisions;

b. The Physician Orders for
Life-Sustaining Treatment, or POLST, form complements an advance directive by
converting a person’s wishes regarding life-sustaining treatment, such as those
set forth in an advance directive, into a medical order;

c. The POLST form:
contains immediately actionable, signed medical orders on a standardized form;
includes medical orders that address a range of life-sustaining interventions
as well as the patient’s preferred intensity of treatment for each
intervention; is typically a brightly colored, clearly identifiable form; and
is recognized and honored across various health care settings;

d. The use of a POLST form
is particularly appropriate for persons who have a compromised medical
condition or a terminal illness, and the experience in other states has shown
that the use of the POLST form helps these patients to have their health care
preferences honored by health care providers;

e. The use of POLST forms
can overcome many of the problems associated with advance directives, which in
many cases are designed simply to name an individual to make health care
decisions for the patient if the latter becomes incapacitated or otherwise lack
specificity in regard to the patient’s health care preferences, and are often
locked away in file drawers or safe deposit boxes and unavailable to health
care providers when the need arises to ensure that the patient's wishes are
followed;

f. A completed POLST form
is signed by, and more readily available than an advance directive to, the
patient’s attending physician or advanced practice nurse, and provides a
specific and detailed set of instructions for a health care professional or
health care institution to follow in regard to the patient’s preference for the
use of various medical interventions;

g. To date, at least the
following states, or communities within these states, have established programs
providing for the use of the POLST form that have been endorsed by the National
POLST Paradigm Task Force or are in the process of developing such programs:
Alaska, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa,
Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, North
Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Washington, West
Virginia, Wisconsin, and Wyoming; and

h. The right and
preference of New Jerseyans to have their health care preferences respected
would be better served by the use of the POLST form in this State to augment
the use of advance directives, and the enactment of this act will conduce to
that end.

“Advanced practice nurse” or
“APN” means a person who is certified as an advanced practice nurse pursuant to
P.L.1991, c.377 (C.45:11-45 et seq.).

“Commissioner” means the
Commissioner of Health and Senior Services.

“Decision-making capacity”
means a patient's ability to understand and appreciate the nature and
consequences of a particular health care decision, including the benefits and
risks of that decision, and alternatives to any proposed health care, and to
reach an informed decision.

“Department” means the
Department of Health and Senior Services.

“Emergency care” means the use
of resuscitative measures and other immediate treatment provided in response to
a sudden, acute, and unanticipated medical crisis in order to avoid injury,
impairment, or death.

“Emergency care provider”
means an emergency medical technician, paramedic, or member of a first aid,
ambulance, or rescue squad.

“Health care decision” means a
decision to accept, withdraw, or refuse a treatment, service, or procedure used
to diagnose, treat, or care for a person’s physical or mental condition,
including life-sustaining treatment.

“Health care professional”
means a health care professional who is licensed or otherwise authorized to
practice a health care profession pursuant to Titles 45 or 52 of the Revised
Statutes and is currently engaged in that practice.

“Life-sustaining treatment”
means the use of any medical device or procedure, artificially provided fluids
and nutrition, drugs, surgery, or therapy that uses mechanical or other
artificial means to sustain, restore, or supplant a vital bodily function, and
thereby increase the expected life span of a patient.

“Patient” means a person who
is under the care of a physician 1or
APN1.

“Patient’s representative”
means an individual who is designated by a patient or otherwise authorized
under law to make health care decisions on the patient’s behalf if the patient
lacks decision-making capacity.

“Physician” means a person who
is licensed to practice medicine and surgery pursuant to chapter 9 of Title 45
of the Revised Statutes.

“Physician Orders for
Life-Sustaining Treatment form” or “POLST form” means a standardized printed
document that is uniquely identifiable and has a uniform color, which:

a. is recommended for use
on a voluntary basis by patients who have advanced chronic progressive illness
or a life expectancy of less than five years, or who otherwise wish to further
define their preferences for health care;

b. does not qualify as an
advance directive;

c. is not valid unless it
meets the requirements for a completed POLST form as set forth in this act;

d. provides a means by
which to indicate whether the patient has made an anatomical gift pursuant to
P.L.2008, c.50 (C.26:6-77 et seq.);

e. is intended to provide
direction to emergency care personnel regarding the use of emergency care, and
to a health care professional regarding the use of life-sustaining treatment,
with respect to the patient, by indicating the patient’s preference concerning
the use of specified interventions and the intensity of treatment for each
intervention;

f. is intended to
accompany the patient, and to be honored by all personnel attending the
patient, across the full range of possible health care settings, including the
patient’s home, a health care institution, or otherwise at the scene of a
medical emergency; and

g. may be modified or
revoked at any time by a patient with decision-making capacity or the patient’s
representative in accordance with the provisions of section 7 of this act.

“Resuscitative measures” means
cardiopulmonary resuscitation provided in the event that a patient suffers a
cardiac or respiratory arrest.

4. It shall be the public
policy of this State to encourage public awareness and understanding of the Physician
Orders for Life-Sustaining Treatment form as a means of enabling patients in
this State to indicate their preferences for health care through the use of a
completed POLST form as a complementary measure to the use of an advance
directive, or in lieu of an advance directive if the patient has not executed
such a document, in accordance with the provisions of this act.

5. The Commissioner of
Health and Senior Services shall designate a patient safety organization (PSO)
operating in this State pursuant to the federal “Patient Safety and Quality
Improvement Act of 2005,” Pub.L.109-41, to carry out the following
responsibilities, by mutual written agreement of the commissioner and that PSO:

a. prescribe a POLST form
and the procedures for completion, modification, and revocation of the form;

b. seek to promote
awareness among health care professionals, emergency care providers, and the
general public in this State about the option to complete a POLST form;

c. provide ongoing
training of health care professionals and emergency care providers about the
use of the POLST form, in consultation with organizations representing, and
educational programs serving, health care professionals and emergency care providers,
respectively, in this State;

d. prescribe additional
requirements for the completion of a POLST form that may be applicable in the
case of a patient with mental illness or a developmental disability in
consultation with organizations that represent persons with mental illness and
development disabilities, respectively;

e. provide for ongoing
evaluation of the design and use of POLST forms through the use of such data as
the PSO determines reasonably necessary for that purpose, subject to the
commissioner’s written approval; and

f. seek to minimize any
record-keeping burden imposed on a health care institution pursuant to this act
and take such actions as are necessary to ensure the confidentiality of any
such data furnished to the PSO that may contain patient-specific information.

6. a. A health care
professional, health care institution, or emergency care provider shall treat a
patient who has a completed POLST form in accordance with the information
contained therein, except as otherwise provided in this act.

b. A POLST form shall be
deemed to be completed, and therefore valid for the purposes of this act if it:

(2) has been voluntarily
signed by a patient with decision-making capacity, or by the patient’s
representative in accordance with the patient’s known preferences or in the
best interests of the patient;

(3) includes the signature
of the patient’s attending physician or APN and the date of that signature; and

(4) meets any other
requirements to be deemed valid for the purposes of this act.

c. A document executed in
another state, which meets the requirements of this act for a POLST form, shall
be deemed to be completed and valid for the purposes of this act to the same
extent as a POLST form completed in this State.

7. a. If the goals of care
of a patient with a completed POLST form change, the patient’s attending
physician or APNmay, after conducting an evaluation of the patient and2[, to the maximum extent
practicable, acting in consultation with]after obtaining informed consent from2 the patient or2, if the patient
has lost decision-making capacity,2
the patient’s representative 2in
accordance with subsection d. of this section2, issue a new order
that modifies or supersedes the completed POLST form consistent with the most
current information available about the patient’s health status and goals of
care.

b. A patient with
decision-making capacity, may, at any time, modify or revoke the patient’s
completed POLST form or otherwise request alternative treatment to the
treatment that was ordered on the form.

c. If the orders in a
patient’s completed POLST form regarding the use of any intervention specified
therein conflict with the patient’s more recent verbal or written directive to
the patient’s attending physician or APN, the physician or APN shall honor the
more recent directive from the patient in accordance with the provisions of
subsection e. of this section.

d. 2[If a]The POLST form shall
provide the patient with the choice to authorize the patient’s representative
to revoke or modify the patient’s completed POLST form if the2 patient 2[who has a completed
POLST form has lost]loses2
decision-making capacity2[,]. If the patient so
authorizes the patient’s representative,2 the patient’s representative may, at
any time2[,]after the patient
loses decision-making capacity and2
after consultation with the patient’s attending physician or APN, request the
physician or APN to modify or revoke the completed POLST form, or otherwise
request alternative treatment to the treatment that was ordered on the form, as
the patient’s representative deems necessary to reflect the patient’s health
status or goals of care. 2If
the patient does not authorize the patient’s representative to revoke or modify
the patient’s completed POLST form, the patient’s representative may not revoke
or modify the patient’s completed POLST form.2

e. A verbal or written
request by a patient or the patient’s representative to modify or revoke a
patient’s completed POLST form, in accordance with the provisions of this
section, shall be effectuated once the patient’s attending physician or APN has
signed the POLST form attesting to that request for modification or revocation.

8. a. In the event of a disagreement
among the patient, the patient’s representative, and the patient’s attending
physician or APN concerning the patient's decision-making capacity or the
appropriate interpretation and application of the terms of a completed POLST
form to the patient's course of treatment, the parties:

(1) 2[shall]may2 seek to resolve
the disagreement by means of procedures and practices established by the health
care institution, including, but not limited to, consultation with an
institutional ethics committee, or with a person designated by the health care
institution for this purpose; 2[and]or2

(2) 2[upon a failure to resolve
the disagreement in the manner set forth in paragraph (1) of this subsection,]2 may seek
resolution by a court of competent jurisdiction.

b. A health care
professional involved in the patient's care, other than the attending physician
or APN, or an administrator of a health care institution may also seek to
resolve a disagreement concerning the patient's decision-making capacity or the
appropriate interpretation and application of the terms of a completed POLST
form to the patient's course of treatment in the same manner as set forth in
subsection a. of this section.

9. Nothing in this act
shall be construed to:

a. abridge a patient’s
right to refuse treatment under either the United States Constitution or the
Constitution of the State of New Jersey;

b. impair the obligations
of a health care professional to provide for the care and comfort of the
patient and to alleviate pain, in accordance with accepted medical and nursing
standards;

c. impair the legal
validity of a written order not to attempt cardiopulmonary resuscitation on a
patient in the event that the patient suffers a cardiac or respiratory arrest,
which is not part of a completed POLST form, if the order was signed by a
physician prior to or after the effective date of this act and would be deemed
valid under State law or regulation in effect prior to the date of enactment of
this act;

d. require a health care
professional, health care institution, or emergency care provider to
participate in the beginning, continuing, withholding, or withdrawing of health
care in a manner contrary to law or accepted medical standards;

e. require a private,
religiously-affiliated health care institution to participate in the
withholding or withdrawing of specified measures utilized to sustain life in a
manner contrary to any of its written institutional policies and practices,
except that the health care institution shall, with respect to a patient with a
completed POLST form:

(1) properly communicate its
institutional policies and practices to the patient, or to the patient’s
representative as applicable, prior to or upon the patient's admission, or as
soon after admission as is practicable; and

(2) if its institutional
policies and practices appear to conflict with the patient’s legal rights,
attempt to resolve the conflict and, if a mutually satisfactory accommodation
cannot be reached, take all reasonable steps to effect the appropriate, timely,
and respectful transfer of the patient to the care of another health care
institution appropriate to the patient's needs, and assure that the patient is
not abandoned or treated disrespectfully; or

10. a. A patient’s
representative shall not be subject to criminal or civil liability for any
action taken by that individual to carry out the terms of a completed POLST
form that is performed in good faith and in accordance with the provisions of
this act.

b. A health care
professional shall not be subject to criminal or civil liability or to
discipline by a health care institution or the applicable State licensing board
for professional misconduct for any action taken by the health care
professional to carry out the terms of a completed POLST form that is performed
in good faith and in accordance with the provisions of this act.

c. A health care
institution shall not be subject to criminal or civil liability for any action
taken by the institution to carry out the terms of a completed POLST form that
is performed in good faith and in accordance with the provisions of this act.

d. An emergency care provider
shall not be subject to criminal or civil liability or to discipline by a
health care institution or any other entity for professional misconduct for any
action taken by the provider to carry out the terms of a completed POLST form
that is performed in good faith and in accordance with the provisions of this
act.

e. The withholding or
withdrawing of life-sustaining treatment pursuant to a completed POLST form,
when performed in good faith and in accordance with the terms of that form and
the provisions of this act, shall not constitute homicide, suicide, assisted
suicide, or active euthanasia.

11. a. A health care
professional who intentionally fails to act in accordance with the requirements
of this act is subject to discipline for professional misconduct pursuant to
section 8 of P.L.1978, c.73 (C.45:1-21).

b. A health care
institution that intentionally fails to act in accordance with the requirements
of this act shall be liable to a civil penalty of not more than $1,000 for each
offense. For the purposes of this subsection, each violation shall constitute
a separate offense. The civil penalty shall be collected in a summary
proceeding, brought in the name of the State in a court of competent
jurisdiction pursuant to the "Penalty Enforcement Law of 1999," P.L.1999,
c.274 (C.2A:58-10 et seq.).

c. An emergency care
provider subject to regulation by the Department of Health and Senior Services
who intentionally fails to act in accordance with the requirements of this act
is subject to such disciplinary measures as the commissioner deems necessary
and within his statutory authority to impose.

d. A person who commits any
of the following acts is guilty of a crime of the fourth degree:

(1) willfully concealing,
canceling, defacing, obliterating, or withholding personal knowledge of a
completed POLST form or a modification or revocation thereof, without the
patient’s consent;

(2) falsifying or forging a
completed POLST form or a modification or revocation thereof of another person;

(3) coercing or fraudulently
inducing the completion of a POLST form or a modification or revocation
thereof; or

(4) requiring or prohibiting
the completion of a POLST form or a modification or revocation thereof as a
condition of coverage under any policy of health or life insurance or an
annuity, or a public benefits program, or as a condition of the provision of
health care.

e. The commission of an
act identified in paragraphs (1), (2), or (3) of subsection d. of this section,
which results in the involuntary earlier death of a patient, shall constitute a
crime of the 1[fourth]first1 degree.

f. The provisions of this
section shall not be construed to repeal any sanctions applicable under any
other law.

12. The commissioner may take
such actions to ensure compliance with the provisions of sections 1 through 11
of this act by the patient safety organization designated pursuant to section 5
of this act, by any health care facility licensed pursuant to P.L.1971, c.136
(C.26:2H-1 et seq.), and by any emergency care provider subject to regulation
by the department, as the commissioner deems necessary and within his statutory
authority to effectuate the purposes of this act.

13. The Commissioner of Human
Services may take such actions to ensure compliance with the provisions of
sections 1 through 11 of P.L. , c. (C. ) (pending before the
Legislature as this bill) by any State or county psychiatric facility or State
developmental center as the commissioner deems necessary and within his
statutory authority to effectuate the purposes of that act.

14. a. The State Board of
Medical Examiners shall require that the number of credits of continuing
medical education required of each person licensed as a physician, as a
condition of biennial registration pursuant to section 1 of P.L.1971, c.236
(C.45:9-6.1), include two credits of educational programs or topics related to
end-of-life care, subject to the provisions of section 10 of P.L.2001, c.307
(C.45:9-7.1), including, but not limited to, its authority to waive the
provisions of this section for a specific individual if the board deems it
appropriate to do so.

b. The State Board of
Medical Examiners, pursuant to the "Administrative Procedure Act,"
P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt such rules and regulations as
are necessary to effectuate the purposes of this section.

15. a. The New Jersey State
Board of Nursing shall require that a person certified as an advanced practice
nurse pursuant to P.L.1991, c.377 (C.45:11-45 et seq.), as a condition of such
continued certification, complete two credits of educational programs or topics
related to end-of-life care as part of the total number of continuing education
credits required by the board; except that the board may waive the provisions
of this section for a specific individual if the board deems it appropriate to
do so.

b. The New Jersey State
Board of Nursing, pursuant to the "Administrative Procedure Act,"
P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt such rules and regulations as
are necessary to effectuate the purposes of this section.

16. a. Sections 1 through 13
of this act shall take effect on the first day of the seventh month after the
date of enactment.

b. Sections 14 and 15 of
this act shall take effect on the first day of the 13th month after the date of
enactment, but the State Board of Medical Examiners and the New Jersey State
Board of Nursing may take such anticipatory administrative action in advance
thereof as shall be necessary for the implementation of those sections,
respectively.